Jupiter Finds Early CAN-SPAM Compliance Spotty

Many commercial e-mailers did not comply with requirements of the federal anti-spam law in its first months because of lax e-mail suppression practices, a new report concluded.

Jupiter Research yesterday released findings of research done in January and February that tracked 55 e-mail marketers across a swath of industries. Jupiter found that more than one-third of messages failed to include a postal address and 16 percent sent offers after the 10-day opt-out period. Both are violations under the CAN-SPAM Act.

The researcher declined to name the companies in its pool but said it selected leading marketers in retail, travel, media and finance.

“The companies we looked at were household names,” said David Daniels, an analyst at Jupiter Research. “It wasn't like we were focusing on the underworld of direct marketing.”

Jupiter Research found that honoring unsubscribe requests through suppression lists is the biggest obstacle to compliance by commercial e-mailers. In a poll of executives regarding their suppression tactics, Jupiter found that just 14 percent were not in danger of breaking CAN-SPAM's requirement. The other 86 percent had moderate or high risk, with the majority at moderate risk.

The problem, Jupiter found, is that marketers do not process opt-out requests frequently enough: 25 percent said they processed them monthly, quarterly or never. Jupiter recommends that processing occur hourly or automatically.

“CAN-SPAM really jarred companies into looking into their e-mail systems,” said Kirill Popov, director of ISP relations and delivery at EmailLabs, a Redwood City, CA, e-mail service provider. “I have a feeling some companies are still using legacy systems that weren't built for it.”

Daniels said that he suspects commercial e-mailers' compliance rate has risen since Jupiter Research examined it in the immediate aftermath of the law's enactment.

“The applications these people are working with can't stop on a dime,” he said of companies doing their own e-mail marketing.

Failure to honor unsubscribe requests is at issue in the first case brought under the federal anti-spam law. In March, small California ISP Hypertouch filed suit against the owner of BobVila.com and its ad agency, BlueStream Media, claiming they continued to mail to Hypertouch addresses after unsubscribe requests. The suit also alleges the messages lacked a physical address and contained false header information.

BVWebTies, the owner of BobVila.com, and BlueStream Media both responded that they were in full compliance with the CAN-SPAM Act.

Jupiter's study comes as the Federal Trade Commission prepares to set rules for commercial e-mailers to comply with CAN-SPAM. The FTC recently ended the comment period for its rulemaking on whether to lengthen the 10-day window for honoring unsubscribe requests.

The FTC also will rule whether P.O. boxes qualify as valid postal addresses under the law. Only 64 percent of the messages tracked by Jupiter Research included street addresses.

Michael Goodman, an FTC staff attorney, said the agency had not measured the rate of compliance by the e-mail marketing industry.

“I just don't have data on it,” he said.

Senders of unsolicited commercial e-mail have not complied with the law, according to spam-filtering companies. A survey in January by Audiotrieve found 90 percent of unsolicited commercial e-mails violating some provision of the law, such as for an honest subject line and valid physical address. Audiotrieve did not test unsubscribe requests.

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